On June 28, the Ontario Court of Appeal issued their Decision , 4 to 1 in favour of the federal government’s right to impose a system of carbon pricing across Canada, under the Greenhouse Gas Pollution Pricing Act. Some important excerpts from the majority decision:

“Parliament has determined that atmospheric accumulation of greenhouse gases causes climate changes that pose an existential threat to human civilization and the global ecosystem ….The need for a collective approach to a matter of national concern, and the risk of non-participation by one or more provinces, permits Canada to adopt minimum national standards to reduce [greenhouse gas] emissions…

The Act does this and no more. It leaves ample scope for provincial legislation in relation to the environment, climate change, and GHGs, while narrowly constraining federal jurisdiction to address the risk of provincial inaction.

The charges imposed by the Act are themselves constitutional. They are regulatory in nature and connected to the purposes of the Act. They are not taxes.

The Act is the product of extensive efforts – efforts originally endorsed by almost all provinces, including Ontario – to develop a pan-Canadian approach to reducing GHG emissions and mitigating climate change. This, too, reflects the fact that minimum national standards to reduce GHG emissions are of concern to Canada as a whole. The failure of those efforts reflects the reality that one or more dissenting provinces can defeat a national solution to a matter of national concern”

The Ontario government immediately announced that it will appeal the decision to the Supreme Court. The Premier of Alberta, part of the Canada-wide Conservative opposition to the federal carbon tax, said that Alberta is reviewing the decision in his press release. Saskatchewan, which lost its own court challengeto the GGPPA in May 2019, has already filed an appeal in the Supreme Court of Canada, scheduled for December 5 2019 – notably after the coming federal election, in which climate change issues are widely expected to be a top priority for voters.

Provinces line up to participate in Supreme Court appeal: ( Updated as of July 10): As of July 8, seven provinces are registered as intervenors in the Saskatchewan challenge to the carbon tax, scheduled to be heard by the Supreme Court of Canada in December 2019. On July 8, CBC reported that New Brunswick Premier Blaine Higgs abandons planned carbon tax court fight , stating that the province will not waste taxpayers’ money on their own carbon tax court case, but will act as an intervenor in the Saskatchewan’s appeal. Prince Edward Island is also intervening, as explained in P.E.I. intervening in Saskatchewan’s carbon tax court challenge” (July 5). The Premier of PEI states they are “absolutely not” joining the fight against a carbon tax, but are intervening as a way to reserve the right to participate in future. Even more surprisingly, “Quebec intervenes in Saskatchewan’s challenge of carbon tax“, as reported in the Montreal Gazette on July 8. Quebec has joined the case to ensure its provincial rights are upheld in any court decision, and to protect Quebec’s existing cap and trade system.

With implications across the country, the Saskatchewan Court of Appeal handed down a 3-2 decision on May 3, ruling that the federal Greenhouse Gas Pollution Pricing Act (GGPPA) falls within federal government’s “National Concern” constitutional power. The Saskatchewan Association for Environmental Law has compiled all the legal submission documents here ; the EcoFiscal Commission provides a summary of the 155-page Decision here .

The political significance of the Saskatchewan decision: Aaron Wherry at CBC summarizes the general situation in “The carbon tax survived Saskatchewan. That was the easy part” (May 4). The Globe and Mail states what is a widely accepted opinion in its editorial, “Why conservatives secretly love the carbon tax”: “Round One goes to Ottawa. But the courtroom war against the federal carbon tax continues – waged by a fraternity of conservative provincial governments with more of an eye on immediate political returns than ultimate legal outcomes.”

Update: Three law professors- Jason MacLean (University of Saskatchewan), Nathalie Chalifour ( University of Ottawa) and Sharon Mascher (University of Calgary) published a reaction to the Saskatchewan Court’s decision on May 7 in The Conversation. “Work on Climate not weaponizing the constitution” takes issue with some of the finer legal points of the decision, but welcomes the Court’s recognition of the urgency and scale of the climate emergency, and concludes: “We have to stop weaponizing the Constitution and start working together, across party lines at all levels of government, on urgent and ambitious climate action.”

On December 20, easily overlooked because of the holiday season, Environment and Climate Change Canada published five separate review reports. Clean Canada: Protecting the Environment and Growing our Economy is a snapshot of Canada’s federal climate action policies and expenditures, and seems intended for a wide popular audience. Second Annual Synthesis Report regarding the Pan-Canadian Framework on Clean Growth and Climate Action (French version here ) is a more detailed accounting of the policies and programs by the federal and provincial governments in 2018, organized in chapters relating to carbon pricing, complementary measures (buildings, transportation, electricity, agriculture, etc.); adaptation and resilience; clean technology and innovation and jobs; reporting and oversight; federal engagement and partnership with Indigenous people . 2018 Canada’s Greenhouse Gas and Air Pollutant Emissions Projections Report (French version here ) provides, again, a policy overview but its main purpose is to continue the series of annual reports (since 2011) of detailed emissions data for economic sector and geographic region. It also includes emissions projections to 2030 under two different scenarios – (spoiler alert: oil and gas will be Canada’s leading source of emissions, followed by transportation and heavy industry).

The final Clean Fuel Standard Regulatory Design Paperfocuses on the liquid fuels regulations, with comments requested by February 1, 2019. The draft regulation is scheduled to be published in 2019 and a final regulation by 2020, bringing to an end a complex consultation process that began in 2016 (summarized by WCR in January 2018). The Clean Fuel Standard will apply to the full life cycle of all fuels, gasoline and diesel, aviation fuel, natural gas for heating, and metallurgical coal, and has been called the single most important policy tool to achieve Canada’s emissions reductions target for 2030.

Public opinion supports the government’s carbon tax actions, though barely, according to polling made public by Global Newson January 3 . Based on a November 9 internal poll conducted for the Liberal party, 46 per cent supported and 44 per cent opposed the plan in Saskatchewan and Manitoba ; in Ontario, 43 per cent were in support and 32 per cent opposed. Nationally, support was at 47 per cent and opposition was at 29 per cent, with women more supportive than men.

Recently, one article appeared in the labour press, supporting carbon pricing: “Pricing carbon first step to tackling climate change” in CUPE’s Economy at Work newsletter (Jan. 2). The mainstream press has been far more active, with general support for a carbon tax: for example, an editorial in the Globe and Mail newspaper is titled: “ Do you want a carbon tax, or do you want to be lied to? “(Dec. 26) . The editorial is critical of the Ontario government’s Ontario Carbon Trust proposal, about which it states: “One emerging conservative alternative to carbon pricing is working with business to spur the development of green technology. What that usually means is taxpayers giving subsidies to business.… “Ontario’s Progressive Conservatives ….say they will dish out $400-million on a “Carbon Trust” that will collaborate with industry on emissions cuts. They can rail against carbon pricing all they want; spending taxpayer money has the same effect on pocketbooks as asking consumers to pay more.”

The Canadian Chamber of Commerce was also widely cited as supporting a carbon tax, to the extent that they issued a press release on December 17 2018, clarifying their position: “While some of the [media] coverage notes the Chamber’s support for carbon pricing, it neglects to include that the support is contingent upon significant caveats. The report calls for government to take concrete steps to reduce the overall regulatory burden on businesses in Canada, and to return the revenues from the carbon tax to business to help them lower their carbon emissions and their energy costs.” The report referred to, outlining the full arguments, is A Competitive Transition: How smarter climate policy can help Canada lead the way to a low carbon economy, which was published in December 2018.

Take it to the Courts! Saskatchewan filed its challenge to the constitutionality of the federal price on carbon pollution in April 2018; the Saskatchewan Court of Appeal announced that it will hear the case in February 13 and 14, 2019, and released the lengthly list of intervenors which it has allowed to appear. Intervenors include the provinces of Ontario and New Brunswick on the side of Saskatchewan, and the province of British Columbia on the side of the federal government; other intervenors include the Canadian Public Health Association ; EcoJustice, representing the David Suzuki Foundation and the Athabasca Chipewyan First Nation; and the Council of Canadians , as part of a group of seven other civil society groups, including the National Farmers Union and Climate Justice Saskatoon.

A separate case was filed by the Government of Ontario and will be heard by the Ontario Court of Appeal in April 2019. The full list of intervenors, as well as the court filings by the Ontario government, appear at the Court of Appeal website here . British Columbia and New Brunswick have also applied for intervenor status in this case.

How will the courts decide? “Courts should not have to decide climate change policy” appeared on December 21 in Policy Options, with a discussion of the carbon pricing cases as well as the recent litigation by Quebec’s ENvironnement JEUnesse . Co-authors Nathalie Chalifour and Jason Maclean argue that “only a collaborative approach to policy-making is capable of delivering the kinds of rapid, forward-looking and systemic changes in how industries and societies function that are necessary to avoid the most catastrophic consequences of climate change. Litigation, by contrast, is necessarily reactive and typically divisive, time-consuming and influenced by the incremental development of legal precedent.” Regarding the provincial carbon tax challenges, they state that “the federal Greenhouse Gas Pollution Pricing Act is an example par excellence of cooperative federalism.”…. “There’s little doubt that the courts will confirm the federal government’s jurisdictional authority to regulate GHG emissions. They may even decide that the Constitution obliges the government to take more serious climate action.”

On October 23, Prime Minister Justin Trudeau announced that the federal government will hold its resolve to impose a carbon pricing policy across all Canadian jurisdictions in 2019 – see the press release, “Government of Canada Putting a price on pollution” (Oct. 23). Key to the plan: the Climate Action Incentive, whereby all carbon revenue will go directly back to people in the provinces from which it was generated. David Roberts of Vox hits the nail on the head with “Canadian Prime Minister Justin Trudeau is betting his reelection on a carbon tax” (Oct. 24) , stating, “It’s a thoughtful plan, remarkably simple, transparent, and economically sound for something cooked up in a politically fraught context. If it’s put into place (and stays in place), it would vault Canada to the head of the international pack on climate policy.”

The National Observer provides some detail to the complex calculations of the backstop rebates of the Climate Action Incentive, but the detail is at the government’s webpage, Pricing Pollution: How it will work which provides links to individual explainers for each province and territory.

In “The Rocky Road to Canada-wide Carbon Pricing,” released by the C.D. Howe Institute on October 17, author Tracy Snoddon from Wilfred Laurier University offers recommendations on how the revenues should be distributed after January 1, 2019, when the minimum carbon price backstop comes into force. The author estimates carbon revenues of $ 2.8 billion in 2019 if the backstop was implemented in Ontario, Saskatchewan, New Brunswick, Newfoundland and Prince Edward Island. She recommends that the federal government should impose the backstop price and return the revenues as an equal per-capita rebate to residents- with the justification that such an approach minimizes intrusion in provincial fiscal matters, reinforces the environmental goals rather than revenue generation, and is most progressive in its distributional impacts. A summary appears in the C.D. Howe press release and in “C.D. Howe Institute throws its weight behind federal carbon tax” in the Globe and Mail (Oct. 19).

Finally, a new organization launched in October. Put A Price On It Canada promotes carbon pricing as a solution to climate change – and asks “why does Canada need another group fighting for carbon pricing?” The difference: it aspires to be a national network to empower students on university campuses – currently at Simon Fraser University, the University of Ottawa, University of Waterloo, and Carleton University.